48 Wn.2d 395, THOMAS J. FERRIS et al., Appellants, v. DAN BLUMHARDT, as Executor, et al., Respondents and Cross-appellants
[No. 33045. En Banc. Supreme Court February 23, 1956.]
THOMAS J. FERRIS et al., Appellants, v. DAN BLUMHARDT, as
Executor, et al., Respondents and Cross-appellants.«1»

In the instant case, the Witzigs communicated to the Ferrises a written offer to devise, asking in return that the Ferrises furnish continuous companionship and care. That the appellants placed this interpretation upon the offer is indicated by paragraph No. 4 of their amended complaint which states, in part:

". . . Plaintiffs [appellants] promised to render continuous and constant companionship to the said Witzigs throughout the remainder of the natural lives of the said Witzigs, . . . and Plaintiffs further promised to accept said Witzigs into Plaintiffs' immediate family circle and to take personal care of said Witzigs during said period as Plaintiffs would care for elderly members of their own immediate family without, however, additional financial expense to Plaintiffs; . . ."

[2] There is an inescapable inference that the Ferrises accepted the offer and that a contract existed between them and the Witzigs, from the fact that the Ferrises left their friends and relatives in Milwaukee, moved their family of three to Seattle, where they knew no one except the Witzigs, and, upon their arrival, moved into and remained in the Witzig home, thus commencing performance of the acts requested in the Witzigs' offer. See Ellis v. Wadleigh, 27 Wn. (2d) 941, 182P. (2d) 49 (1947).

[3] Appellants assign error to the making and entering of certain findings of fact adverse to them. These findings were based upon conflicting testimony. We have repeatedly held that the findings of a trial court, entered upon conflicting evidence, will be approved on appeal unless the evidence clearly preponderates against them. Carroll Constr. Co. v. Smith, 37 Wn. (2d) 322, 331, 223 P. (2d) 606 (1950). Our

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reading of the record convinces us that the evidence does not preponderate against the trial court's findings. Therefore, they must be accepted as the established facts in the case. McKown v. Davis, 47 Wn. (2d) 10, 15, 285 P. (2d) 1048 (1955), and cases cited.

From its findings of fact, the trial court concluded with reference to the first cause of action (1) that the Ferrises had "failed to sustain their burden of proof under the First Cause of Action," and (2) that, if there was a contract to devise, the appellants had not shown that the services contemplated had been performed. The findings support these conclusions, but do not support the court's conclusion that no contract to devise ever existed or that the contract was too indefinite for specific performance.

[4] We have held that, where the conclusions of law are not supported by the findings or are inconsistent therewith, the findings will control. State v. Twenty Barrels of Whiskey, 104 Wash. 382, 176 Pac. 673 (1918); Fisher v. Coy Valve Co., 138 Wash. 35, 244 Pac. 125, 247 Pac. 966 (1926). See, also, Katterhagen v. Meister, 75 Wash. 112, 134 Pac. 673 (1913).

[5] The court's findings support the judgment. When the findings are in accord with the judgment, the inconsistent conclusions of law will be disregarded. See State v. Twenty Barrels of Whiskey, supra.

[6] If the judgment of the trial court is based upon an erroneous ground, it will be sustained if correct upon any ground within the pleadings and established by the proof. In re Bodvin's Estate, 37 Wn. (2d) 872, 878, 226 P. (2d) 878 (1951); Portland Ass'n of Credit Men v. Earley, 42 Wn. (2d) 273, 277, 254 P. (2d) 758 (1953).

[7] The respondents' general denial in answer to the complaint put in issue the implied as well as the express averments of the complaint, and any fact which tended to destroy the appellants' cause of action was provable. Haveman v. Beulow, 36 Wn. (2d) 185, 188, 217 P. (2d) 313, 19 A. L. R. (2d) 763 (1950), and cases cited; Sinko v. Sinko, 39 Wn. (2d) 246, 250, 234P. (2d) 1085 (1951), and cases cited.

Feb. 1956] FERRIS v. BLUMHARDT. 401

The continued existence of the alleged contract, which was necessary to the appellants' first cause of action, was put in issue by the general denial.

We hold that the evidence established that, at the inception of the relationship between the Whitzigs and the appellants, there was a contract to devise, but, as the trial court indicated in its conclusions, there was a failure to perform its conditions, and, hence, there was a breach.

In their briefs on appeal and their argument before this court, appellants made no contention that there was any change in the performance required of them or that they tendered less than the offer required, or that the Witzigs, during their lifetime, had agreed, expressly or impliedly, to accept anything less than the full performance of the acts required in their original offer, upon which the promise to devise was predicated. Hence, we are not here concerned with a waiver of any of the conditions precedent to the decedents' obligation to perform.

The offer required that continuous companionship and care be furnished by the Ferrises for the lifetime of the Witzigs. December 3, 1951, Mrs. Ferris enrolled in a business school, and for approximately ten months she was absent from the residence one half of every week day. September 15, 1952, she accepted full-time employment. During all of this time, Mr. Ferris was employed full time. The evidence definitely established that the services required by the offer were not rendered. Companionship and care cannot be effected by absence.

[8] The Witzigs' offer requested an act in return for the promise to devise, and thus contemplated a unilateral contract.

1 Restatement, Contracts, 65, § 59, states:

"Except as this rule is qualified by §§ 45, 63, 72, an acceptance must comply exactly with the requirements of the offer, omitting nothing from the promise or performance requested." (Italics ours.)

In § 45, p. 53, of the same text, it is said that,

"If an offer for a unilateral contract is made, and part of the consideration requested in the offer is given or tendered

402 FERRIS v. BLUMHARDT. [48 Wn. (2d)

by the offeree in response thereto, the offeror is bound by a contract, the duty of immediate performance of which is conditional on the full consideration being given or tendered within the time stated in the offer, or, if no time is stated therein, within a reasonable time." (Italics ours.)

In ceasing to provide companionship and care, the appellants failed to render the full consideration upon which the decedents' promise to devise was conditioned.

A contractual duty is discharged by the unexcused failure of a condition to occur within the time necessary to create a right to immediate performance of the duty. 2 Restatement, Contracts, 746, § 395.

[9] The essential element of the agreement to devise being the furnishing of continuous companionship and care during the decedents' remaining years, the enrollment in the business school and the admitted acceptance by Evelyn Ferris of full-time employment during those years was a material breach, and an unexcused failure of the condition, which discharged the decedent Anna Witzig from any duty to devise.

[10] The appellants' breach commenced December 3, 1951, and continued until the time of Mrs. Witzig's death. They were in continuous default. One in default cannot enforce specific performance of a contract. Bayley v. Lewis, 39 Wn. (2d) 464, 472, 236 P. (2d) 350 (1951). Since there was an admitted breach, and no contention of waiver raised, the contractual duty to devise was terminated by the unexcused failure of the condition of full performance. 2 Restatement, Contracts, 746, § 395.

[11, 12] Although the trial court's judgment was not granted upon the ground of abandonment, the court's findings amply support a conclusion that the contract to devise was abandoned by the parties during the lifetime of the decedent. Abandonment of a right is the voluntary relinquishment thereof by its owner or holder, with the intention of terminating his ownership. See 1 C. J. S. 4, § 1. A contract will be treated as abandoned where the acts of one party inconsistent with its existence are acquiesced in by

Feb. 1956] FERRIS v. BLUMHARDT. 403

the other. Wiegardt v. Becken, 21 Wn. (2d) 59, 73, 149 P. (2d) 929 (1944).

That the appellants and the decedent, during her lifetime, abandoned the contract to devise is established by the following:

(1) Anna Witzig gave the appellants a deed to her house and title to her automobile on June 3, 1949, and August 7, 1950, respectively. The' value of these items represented approximately fifty per cent of her entire estate. This premature grant indicates that the original agreement had been greatly modified, if not entirely abandoned, and, with the remaining acts of the parties, establishes an abandonment as of June 3, 1949.

(2) Although legal documents were prepared at the time of making the deed and transferring title to the automobile, there was no evidence that either of the appellants ever requested the decedent to make a will in accordance with the alleged agreement.

(3) Subsequent to delivery of the deed, Mrs. Witzig paid the Ferrises for their services in redecorating her room, and paid Mrs. Ferris for certain personal services rendered.

(4) During the lifetime of the decedent, the appellants made no inquiry concerning, and exercised no dominion over, any of decedent's property except such as had been conveyed to them.

(5) August 6, 1951, decedent gave five thousand dollars to the Blumhardts. Thereafter, she lived with them approximately one third of the time.

(6) Anna C. Witzig made a will which, by its written terms, indicated that the contract had been terminated at the time the will was executed.

(7) When, after the death of Mrs. Witzig, her will was read to the Ferrises, they did not indicate that there then existed a contract to devise. Instead, by oral statements, they gave credence to the will as read.

The conduct described above, plus the fact that Mrs. Ferris absented herself from the home and ceased to furnish companionship and care, establishes that the parties

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recognized the abandonment of the contract to devise. Because of the abandonment, the decedent was free to devise the remainder of her property as she saw fit, and as she subsequently did, June 12, 1952.

[13] We hold that the established facts in this case support the conclusion that, in addition to the breach, the contract was abandoned. Having so concluded, the appellants cannot prevail upon their first cause of action, which cause included the request for restoration to the estate of the five-thousand-dollar gift to the Blumhardts.

[14] With reference to the second cause of action, the appellants are entitled to recover, under the doctrine of quantum meruit, for the value of such services as they did render to decedent subsequent to the breach and abandonment of the contract.

From the record before us, we hold that the judgment allowed by the trial court amply compensates the appellants for the services thus performed. Losli v. Foster, 37 Wn. (2d) 220, 233, 222 P. (2d) 824 (1950).

[15, 16] Assignment No. 4 concerns the exclusion of certain testimony of two witnesses, and the offers of proof with reference thereto. Based upon the offer of proof, the testimony of Lorraine Lambrecht was properly excluded as hearsay. The excluded testimony of Thomas J. Ferris, as shown by the offer of proof, would not have rebutted the testimony of Dan Blumhardt, and its exclusion was therefore not prejudicial. See Sutton v. Mathews, 41 Wn. (2d)64, 247 P. (2d) 556 (1952). We find no merit in this assignment of error.

Appellants' remaining assignments of error are without merit for the reasons above stated.

We find no merit in respondents' cross-appeal.

The judgment of the trial court is affirmed. Since respondents did not prevail upon their cross-appeal, neither party will recover costs.

HAMLEY, C. J., MALLERY, SCHWELLENBACH, and ROSELLINI, JJ., concur.

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FINLEY, J. (concurring in the result) -The letter Anna C. Witzig wrote to the Ferrises in September, 1946, is quoted in part in the majority opinion. Giving the language of the letter its ordinary meaning, it seems to me that Anna Witzig primarily was advising the Ferrises that employment possibilities were excellent in the city of Seattle, and that, by moving to Seattle, the Ferrises would have a very good opportunity to improve their mode of life substantially and immediately. The letter inferred that living together in the Witzig home in Seattle would be advantageous to both families; and finally, it suggested, I think as a probability rather than a certainty, that whoever was living with them would get the property which the Witzigs owned when they passed away. I do not think the language of the letter justifies an assumption (a) that Anna Witzig was to be restricted during her lifetime as to the use, control, and disposition of her property, or (b) that she would be bound irrevocably to leave to the Ferrises all of the property the Witzigs owned on the date of the letter, or the property that Anna Witzig would own at the time of her death. In other words, I do not think the letter clearly established a contract to devise property.

Assuming for the moment, however, that the letter did spell out some contractual obligation on the part of the Witzigs to devise property, I could not agree that Anna Witzig's gift of five thousand dollars to the Blumhardts constituted fraud in violation of her contractual obligations to the Ferrises. I reach this conclusion because the purpose of the gift was to enable the Blumhardts to acquire a larger home so that Anna Witzig could live with them for extended periods of time, and she apparently did so. Certainly, if Anna Witzig had spent five thousand dollars on a world cruise for herself and some congenial companion of her own sex, it would seem to me that nothing in the letter of September, 1946, would have prevented this. The gift to the Blumhardts should be viewed in the same light.

For the reasons indicated, I concur in the result reached by the majority.

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HILL, J. (dissenting)-I agree with the majority that there is an inescapable inference that the Ferrises accepted the offer made by the Witzigs in their letters, and that the trial court erred in its conclusion that no contract to devise ever existed or that the contract was too indefinite for specific performance.

The majority, proceeding upon a theory suggested by neither party and never considered by the trial court, concludes that, although there had been a contract to devise, the Ferrises had breached it or both parties to it, Anna Witzig and the Ferrises, had abandoned it. I cannot agree that the seven items, events, or circumstances which the majority says establish an abandonment of the contract have any such effect.

The first, and apparently regarded as the most important, is the fact that on June 3, 1949, Anna Witzig gave the Ferrises a deed to her home. The witness Alford B. Riggs, who took Anna Witzig's acknowledgment to that deed, testified that she said at that time that she was